Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Saturday, July 15, 2006

Fight for Gay Marriage Continues...

It's been a bad couple of weeks for gay marriage rights. On Fri., July 7th, the Supreme Courts of both New York and Georgia held separately that their state constitutions did not require marriage equality. And on Fri., July 14th the 8th Circuit Court of Appeals overturned a lower judge's ruling that Nebraska's ban on not only gay marriage but other rights for gay couples--e.g. health insurance--violated the U.S. Constitution. To add to the gloom, the Tennessee Supreme Court permitted a gay-rights ban measure to go on the State ballot for November. Finally, on Tues. July 11th, the Massachusetts Supreme Judicial Court likewise permitted an anti-gay marriage amendment to proceed to the ballot (although it would not invalidate the 10,000-or-so marriages already consummated).

Courts across the country are failing to follow the lead of the MA court from 2003. In its ruling, the 8th Circuit held that, "limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States." And even the New York court held that, "the traditional definition of marriage is not merely a by-product of historical injustice." Gay marriage supporters are stll hopeful that the CA Supreme Court will rule more favorably in the next several months... but the recent negative decisions by sister courts casts a shadow over the proceedings.

Looks like this is a battle that is going to have to be fought on the ground for a while--something for the legislatures and voters of the States to brawl over. But there is some hope. The Democratic candidates for Governor in California (Angelides) and New York (Spitzer) have both said they would sign gay marriage into law (assuming the legislature assented.) And in a surprise move, the MA legislature put off voting to approve the anti-gay marriage amendment for the ballot until Nov. 9th (since it was done by petition, only 25% of the legislators need to agree with it in two consecutive sessions.)

It's a start.


Anonymous said...

OK, I have been indifferent to the gay marriage issue for a while. Personally, and this is no disrespect to our homosexual friends, it is a non-issue to me. There is no reason that I can think of that homosexuals shouldn't be allowed to marry. I know that LTG has made eloquent arguments about this issue in the past and referred to marriage as the cornerstone of society (correct me, please, if I am wrong. I am drawing from memory.) If that is indeed his arguement, I respectfully disagree. The cornerstone of society is the social contract called the LAW. And the law can be used in all sorts of ways to create obligations between contracting parties. Marriage is one of those places where we too easily confuse the church and the state and get off track.

Last week when I was listening to a report on the hearings before the CA Supreme Court on gay marriage, I realized that I am not indifferent, I am actually annoyed that we are even allowing gay marriage to me made an issue. It has to do with my view of marriage in general And I am not married, never have been. I would like to try it sometime, but that is another issue. So to a certain extent, perhaps I am not qualified to critique this "social institution". But to me, marriage is just that, a contract.

For starters, I am influenced by my European experience. In Europe, or at leat in France, you have two ceremonies for a wedding. One in a church and one at the city hall or government office. And you have to go to both places for the paperwork. Here you sign the license in the church if you are married in a church. Not in Europe, or not at least in France. There is an understanding over there that marriage is a contractual relationship honored and authorized by the state. In addition, there is an understanding that there may be a spiritual side to all of this which is honored by a church. We having something similar here. I can choose to go to city hall and get a marriage license and be joined by a justice of the peace. I don't need a Church to be considered "married" by the state.

Being raised Catholic, I was taught that marriage came with the blessing of God upon the union and some funky ideas about procreation. So I am aware of the conservative arguments.

Now in the Catholic Church, we learn that once God has blessed a marriage, it can't be undone and the Catholic Church does not recognize civil divorces. So you can divorce your spouse under civil law, but the Church still sees you as married. You can be divorced civilly and still partake fully in the Catholic faith. However, if you choose to remarry, you will have to get your first marriage annulled in the eyes of God in order to continue full participation in teh Chuch. A marriage can be annulled if one of the parties fails in their obligation (and if the parish priest is in good with the Bishop). So if a man beats his wife or a wife refuses to consummate the marriage, or any number of reasons that will be judged by the proper church officials, they will annul that marriage as if it had never taken place. Obviously, God would never have condoned such a flawed marriage in the first place. So even the Catholic Church (thus God) has an escape mechanism and an understood contractual relationship.

In the civil system, you go to court, you use the law to divide the spoils and you sign a contract dissolving the civil contract. In fact, you do the same damn thing if your business partner wants to leave the business. The law has some rules about how that can be done- one partner buys out another, one partner assumes the full debt load,etc.

In either scenario, you see that it is a contractual union made between two people. Traditionally, that union has been between a man and a woman. In last week's discussion before the CA Supreme Court, one attorney tried to say that the inability to procreate made gay unions ineligible for marriage. That is a stupid argument on its face. If my 60 year old female friend chooses to marry, it is obvious that there will be no children from that marriage. Likewise, if one party to the marriage is unable to have chilren, that doesn't stop the contract from going forward. But we still call it a marriage. On the other hand, my 35 year old lesbian friend may choose in agreement with her partner to be artificially inseminated. That can happen in a marriage or not. I, as a single female, could go tomorrow and do the same thing.

Gay couples claim that they don't have certain rights that married couples do. Like what? Tomorrow, I could give power of attorney to my best friend, will all my earthly possession to her, and name her as my executor, etc. And basically, she'd have the same rights and duties to my care as a spouse. Likewise, I could marry a man and still grant all of those duties to my best friend excluding my spouse. So we have mechanisms in place that allow people to do all the things that Gay couples say that want to do. Am I wrong about that?

Likewise, some churches are more than willing to preside over and bless gay marriages. So to me, the only real issue is one of principle. It's about equality across the board. Equality when it comes to adoption, alimony payments, etc. And thus, marriage is just one issue out of a dozen.

The issue of marriage itself and what it is, what it means, and its role in society is in people's head. I'd be happy to set up a system like they have in France where even a straight couple can sign what is commonly known as a "concubinage" or a civil contract made between two people who aren't married, but choose to live together. Granted, I think even that civil contract in France is limited to a man or a women. But is really only a question of changing our thinking about marriage. My dad used to tell me that if I just told myself I liked spinach, I would. My dislike was really just in my head. I think a lot of things are like that. I don't really get the difference in practice between marriage and civil union.

// posted by UN West

Anonymous said...

If the anti-gay marriage people were really just about preventing the the state from forcing their church to recognize gay marriage, then this civil union debate would be over and done with by now. That civil unions are also controversial puts the lie to the whole thing. The people who oppose gay rights in this matter do so only because they believe gay couples to be morally and/or socially inferior (market forces say otherwise BTW as gay household net worth tends to be much higher than average).

This is about theocratic elements pressing an issue they think is an easier sell then any number of the other bigotted, small minded, crappy ideas they have for banning or mandating things. 

// posted by Raised By Republicans

Dr. Strangelove said...

I explained why I support gay marriage in an earlier post, here. Please read it if you have not done so.

Is the issue of gay marriage functional or symbolic? The answer is both. USWest asks whether gay couples could--with suitable contractual arrangements--obtain all the privileges of marriage. Alas, this is not so. While partners can confer equivalent rights upon each other as a married couple, there are some benefits of marriage that only the state can confer. Insurance policies that cover spouses, for example, need not cover gay couples. Gay couples cannot file their taxes jointly (if they wished to). And domestic partnership grants no rights of immigration. Marriage is not just "one issue out of a dozen": it is all dozen wrapped into one. Grant equality of marriage, and everything else follows pretty much automatically, from adoption to alimony.

Of course, all these could be fixed as a matter of law though civil unions, without invoking the word marriage--so USWest's central point is correct--but there is a long list of battles to fight just to get there. And even then, unless the law says bluntly that everything granted automatically to spouses by any institution, public or private, must also be available to civil partners... then inequality between the two will persist.

It is also a symbolic issue. Separate but equal is no more true in marriage than in education. A separate institution for gays and lesbians is inherently inferior, and we all know it. Denying marriage is basically saying, "Your relationship isn't good enough. Your love for one another does not deserve to be celebrated with same universal joy we reserve for others."

I understand USWest's suggestion that, if we view marriage as a contract--if we change our thinking about marriage--then the symbolic part of the equation (though not the functional part) basically goes away. I respectfully ask she read over my post (referenced above) on why I support gay marriage.

What can I say. I'm a romantic.

Dr. Strangelove said...

RbR is right on the money when he says that the conservative objection to civil unions gives the lie to their supposed respect for gays and lesbian.

Just to be clear, though, I want to thank USWest for her post and say that there is absolutely no disrespect toward gay couples anywhere in her writing. In fact, her thoughtful post shows a great deal of respect. Marriage is a public, private, personal, religious, and political issue. (No wonder it stirs up such strong emotions.)

Anonymous said...

I do recall reading Dr. S's post when he first put it up. Thank you for the reminder though. It was good to read it again. I think I have bigger issues with how society views and treats marriage in general, especially as a woman.

Conservatives, along with their twisted notions on just about everything, also think women should act and be a certain way in marriage. From my feminist perspective, I firmly object. They think a woman is to be absorbed in marriage, loosing her identity as an individual. Granted, this is partly out of social convention and many women are choosing to so things differently. But the fact that this is expected and that children are some type of obligation makes me shutter. They fact that someone is a spouse automatically confers certain rights a privileges upon them bugs me. Why take all of that for granted? But that might just be my personal attitudes at this time.

So as Dr. S points out, there is more to this debate than just who should and shouldn't be allowed to "marry".

// posted by UNWest

Anonymous said...

I think USWest overstated my case. I think it's fair to say that marriage is a fundamental building block of our society, deeply entrenched in the law, custom, and culture. It is not "the" cornerstone. Marriage can be jetissoned, but it will not be easy surgery.

UNWest is correct that, today, family relationships can be constructed outside of marriage, and increasingly are. The law is way behind on this, depriving such families of many of the protections inherent in marriage.

I favor marriage in part because I believe the contractual view of family relationships is wrongheaded. But that's a post for another day.


// posted by LTG

Anonymous said...

I am UN West, too. I slip up and hit the wrong key. Sorry if it confuses people.

Thanks for the clarification about your position, LTG.


// posted by USWest